There are several fascinating — and significant — developments on the Supreme Court nominee(s) front where Chief Justice nominee John Roberts has received an endorsement from a major newspaper and a solid GOP website gives some inside info on the internal battles over the next court nominee.
If people set aside ideological preferences (for John Roberts or against him for partisan or ideological reasons) there is one key fact: overall Roberts has generally received high marks in the press for the way he conducted himself during the confirmation hearings. He also came to the hearings with a reputation of being a judge who was popular with Democratic lawyers and members of the press who had dealt with him before he was submitted as a nominee to the court. And with every passing day, he seems more of a shoo-in.
Now, the Washington Post has endorsed Roberts and urges Democrats to lighten up when the votes are cast. The Post still remains one of the country’s most prestigious “national newspapers” and its reporters are most notable for peppering political bigwigs with some of the toughest questions, so a Post endorsement isn’t something that can be lightly dismissed. Here are some key parts of the Post’s endorsement:
JOHN G. ROBERTS JR. should be confirmed as chief justice of the United States. He is overwhelmingly well-qualified, possesses an unusually keen legal mind and practices a collegiality of the type an effective chief justice must have. He shows every sign of commitment to restraint and impartiality. Nominees of comparable quality have, after rigorous hearings, been confirmed nearly unanimously. We hope Judge Roberts will similarly be approved by a large bipartisan vote.
The Post then notes that there are many issues on which Roberts will likely vote contrary to the newspaper’s editorial board positions. And then:
Judge Roberts represents the best nominee liberals can reasonably expect from a conservative president who promised to appoint judges who shared his philosophy. Before his nomination, we suggested several criteria that Mr. Bush should adopt to garner broad bipartisan support: professional qualifications of the highest caliber, a modest conception of the judicial function, a strong belief in the stability of precedent, adherence to judicial philosophy, even where the results are not politically comfortable, and an appreciation that fidelity to the text of the Constitution need not mean cramped interpretations of language that was written for a changing society. Judge Roberts possesses the personal qualities we hoped for and testified impressively as to his belief in the judicial values. While he almost certainly won’t surprise America with generally liberal rulings, he appears almost as unlikely to willfully use the law to advance his conservative politics.
The Post then argues that broad Democrat opposition to Roberts would be a mistake because it would tell GWB that there isn’t any conservative that could get their support.
And, indeed, we contend that there are some DANGERS for Democrats in opposing Roberts:
- His nomination is going to pass and, as the Post notes, his selection was initially considered something of an olive branch offering to the Demmies — Bush & Co. essentially putting forth a nominee that wouldn’t require an all out battle, a filibuster and the likely subsequent effort in the face of a filibuster of “the nuclear option” to clear the way for votes on judicial nominees.
- Picking and choosing battles is a difficult task….but if this is indeed a slam-dunk nomination of a thoughtful versus polarizing conservative what will remain for the next nominee if it is a hard line conservative?
- Polls also show widespread public acceptance with the idea of Roberts on the court. If Democrats decide this is the battle to fight to the bitter end the party risks looking obstructionist.
The Post concludes:
If presidents cannot predictably garner confirmation for nominees with unblemished careers in private practice and government service, they will gravitate instead to nominees of lower quality who might excite their bases. Mr. Bush deserves credit for making a nomination that, on the merits, warrants support from across the political spectrum. Having done their duty by asking Judge Roberts tough questions, Democrats should not respond by withholding that support.
Roberts does face some opposition. New York’s Republican Mayor Michael Bloomberg opposes him because he doesn’t feel Roberts gave enough assurances that he’d support the Roe Vs Wade as a settled and established precedent. Daily Kos’ Armando has done some strong posts opposing Roberts, and his latest post notes bipartisan opposition to him.
Confirmation that Democrats face a dilemma — and possibly a boomerang — also comes via Newsweek which notes that even to many liberals Roberts “didn’t sound exactly like a justice in the mold of originalists Antonin Scalia and Clarence Thomas” so his declaration of “I am not an ideologue” carried some weight:
While Democrats openly wished for a better glimpse of the man who would wear the black robe, Roberts’s affability and intellect left them in a quandary… At least half of the eight committee Democrats claimed to be undecided by late last week. Still, with 55 Republicans in the Senate, Roberts’s confirmation is all but assured. What will count most about the Democrats’ votes: the message they send. With President George W. Bush set to name another justice to replace Sandra Day O’Connor—a pick more likely to shift the balance on the court—the political calculus is complicated….If Democrats vote for Roberts, will they have more credibility to vote down the next pick? If they oppose him, will they send a message to the White House that anyone to the right of Roberts would be unacceptable? Or would Bush argue that he might as well appoint an archconservative next time, since the Dems won’t back anyone he chooses?
Some of these arguments are already going on, according to the GOP-oriented website Red State.
It has a fascinating post based on a “source” (and we do BELIEVE it is valid and solid, based on reading this post and the fact the site is generally reliable) that indicates the White House is working through the dilemma of whether the next nominee should be more hard-line to excite the base and possibly trigger a democratic filibuster (and a subsequent GOP clampdown on filibusters on judicial nominees) or be someone who will garner more widespread acceptance.
Read the whole post, but here are some highlights:
As Robert Novak is reporting this morning, many in the Senate think that whoever Bush nominates to the Supreme Court to fill O’Connor’s spot will be filibustered by the Democrats, if they can hold it together. The President would like to avoid that if possible — hence Larry Thompson’s name has been floated. The thinking is that Thompson could pass through the Senate without a filibuster and that he would be to the right of Alberto Gonzales. The President is still not considering Gonzales.
Unfortunately for the President, Larry Thompson gives some vocal conservatives inside and outside the Senate ulcers. Thompson’s views on abortion are not known and his judicial philosophy, while thought to be originalist, is not fully defined. Some conservatives are sending messages to the White House that Thompson is not the guy the President should pick.
Coming into play are the President’s weak poll numbers. He has several members of the Senate, including the Chairman of the Judiciary Committee, who will not necessarily give him full cooperation. The President is going to have to find someone who is considered “top notch” that can keep Senators in line and also keep conservatives happy. “The President needs his base right now. We all know that. An enigma will not satisfy the base,” says the source.
And, the site reports, the base would prefer someone who isn’t remote an ideological enigma:
While Owen seemingly serves the White House purpose, some senators are privately urging the President to go in a different direction. One senate aide tells me, “Owen has said nice stuff on parental consent. That’s about the extent of it. If our guys are going to go all out, he might as well go all out. The Gang of ’08 is not going to sit on their hands if we get a real conservative.”
Meanwhile, Washington Post columnist David Broder, who holds the cliched title “the Dean of columnists” (which is not to mean the Howard Dean of columnists),and is considered an old-school moderate, lauds Roberts in today’s column:
The question of whether Judge John Roberts is qualified to be chief justice of the United States has been rendered moot by his performance in the Senate Judiciary Committee hearings. He is so obviously — ridiculously — well-equipped to lead government’s third branch that it is hard to imagine how any Democrats can justify a vote against his confirmation.
He rattles off a bunch of reasons why. Then he concludes:
Roberts grew up in privileged circumstances but repeatedly expressed his belief in the words “equal justice under law,” which he noted are carved on the portal of the Supreme Court. Nonetheless, Democrats complained that he had not told them where he stands on particular causes of importance to those groups. As he properly said, to answer those questions on pending issues would be, in effect, to enter into “a bargaining process,” to swap commitments in return for votes.
Roberts’s only problem is that he has set a standard so high, it will be difficult for the next nominee to measure up.
If the Democrats are smart, they will not bow to their interest groups but instead will embrace this extraordinary nominee and challenge President Bush, who has at least one more vacancy to fill, to “send us another Roberts.”
Add all this together and it would appear (a)the Democrats might be wise not to make this their life-and death battle, (b)how the Democrats handle this could well influence who the Bush administration picks as its next nominee since it already faces pressures from the GOP base, and (c)if the Democrats defer on this appointment they could face pressures from their party’s activist base to pull out all stops to battle the second Bush Supreme Court nominee.
One of the trends that jumps out in these posts and stories is that it appears that the leaderships of both parties don’t want a bloodletting on Supreme Court nominations — but both parties face pressures from their activist bases to take stronger ideological stands.
HERE ARE SOME OTHER VOICES COMMENTING ON THIS POST:
—Dean Esmay
—Centerfield’s Rick Heller
—Bogus Gold’s Doug Williams.
—Running Scared’s Jazz Shaw
—The Mighty Middle’s Michael Reynolds
Due to logistics this list may not be complete so we encourage you to check and click on trackbacks on this post.
UPDATE: Washington Post columnst E.J. Dionne argues that Roberts should be confirmed, mainly because it has been like pulling teeth to (fruitlessly) get some info about him from the White House — and that Congress needs to send a message on the powers it has and defends:
But the doubts about Roberts have nothing to do with his good heart. The issue is the power about to be put in his hands and into the hands of President Bush’s next appointee — power both will enjoy for life. The Senate and the public have a right to far more assurance about how Roberts would use that power than they have been given in these hearings. The Senate is under no obligation to give the president or Roberts the benefit of the doubt.
If senators simply vote “yes” on Roberts, they will be conceding to the executive branch huge power to control what information the public gets and doesn’t get about nominees to life positions. The administration has stubbornly refused to release a share of Roberts’s writings as deputy solicitor general. This is a dare to the Senate, and the administration is assuming it will wimp out. A “yes” on Roberts would be a craven abdication of power to the executive branch.
That seems like a good argument, in concept. But in reality if the Demmies went with it and it was only Democrats, the perception would again be that no matter who Bush nominates he would be opposed on the grounds that it’s a conservative. And perception=reality in politics so that provide useful campaign fodder for the GOP in 2006 and 2008. He writes:
A majority of “no’s,” very unlikely to be sure, need not mean the end of his nomination. It would constitute a just demand for Roberts (and whoever Bush names next) to answer more questions in a more forthcoming way and for the administration to provide information that the public, and not just the Senate, deserves. How many senators will have the guts to make that statement?
It is a Catch 22: make a statement on the powers of a branch of government or be perceived as opposing anyone who is conservative because he’s a conservative. Since GWB ran on appointing conservative judges, it’s no surprise he’s nominating conservatives (who did some folks expect he’d nominate: Alan Dershowitz?)….and polls show Roberts has worn well with the public as they see him. On the other hand, Dionne has a point about Congress by default ceeding powers to the executive branch. In the longeterm that should be of concern to elected officials of both parties because it’s setting a precedent and re-arranging institutional boundaries.
UPDATE II: An anti-Roberts video montage stringing together quick clips of him declining to answer questions can be seen here at Crooks and Liars. (Note that the argument Roberts and some lawyers make is that if he answered some of these questions he would not be able to rule on these issues if they came before him.)
UPDATE III: Another view on what’s happening and what might come next.
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.